The “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” Bill Would Be Bad News for Section 230

drudge sirenAs expected, last week Rep. Ann Wagner introduced the “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” bill, H.R. 1865. This is a renamed version of the draft bill, the “No Immunity for Sex Traffickers Online Act,” I recently blogged about.

This post explains what the bill now says and some of the problems it would create. However, my prior blog post still applies pretty much in full, so please reread that post in conjunction with this one.

In particular, the new bill does nothing to answer some of the pointed questions I asked in my prior post, including:

* how does this bill relate to the SAVE Act, also sponsored by Rep. Wagner? The SAVE Act bypassed Section 230 to create a new federal crime of running ads that support sex trafficking. Given the obvious importance of this topic, why hasn’t the DOJ brought more (any?) prosecutions under the SAVE Act? Did the SAVE Act fail as a policy matter? If so, why do the proponents think this law will succeed instead? Or is it still too early to know how the SAVE Act will work? If so, it’s premature to add new law when a recent change in the law may already solve the problem.
* To what extent would the bill conflict with the First Amendment, just as the SAVE Act has its own First Amendment limits?
* Who does the law target? Backpage has attempted to exit the online prostitution ad industry, but the new bill remains an anti-Backpage law. If the law targets an already-gone player, what does it hope to accomplish? And if the target isn’t Backpage, who is targeted and how will they respond to the new legal sanctions?
* How will plaintiffs use this law? Will state AGs use this tool to target online publishers? Will states pass new laws to take advantage of the new Section 230 exclusion? (more on these questions in a bit).
* Would this law actually improve the situation for victims specifically and society generally? There are crucial empirical questions about how online prostitution ads hurt–and perhaps help–victims of online sex trafficking, and the bill simply assumes further crackdowns benefit victims. Yet, without any empirical support for that proposition, the bill could be actually counterproductive to its main goal.

What the Bill Says

The bill would modify Section 230 as follows:

* legislative findings that Section 230 was never intended to protect “websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims,” plus an amendment to Section 230’s policy statement that Congress seeks to “ensure vigorous enforcement” against intermediaries for “sexual exploitation of children or sex trafficking.”
* excluding 18 USC 1591 from Section 230’s immunity, and making it clear that Section 230 does not preempt victim restitution under that law. The SAVE Act previously amended 18 USC 1591 to impose liability for publishing ads for trafficked victims.
* excluding from Section 230’s immunity “any State criminal statute that prohibits (i) sexual exploitation of children; (ii) sex trafficking of children; or (iii) sex trafficking by force, threats of force, fraud, or coercion.”
* excluding from Section 230 any federal or state law that “provides causes of action, restitution, or other civil remedies to victims of (i) sexual exploitation of children; (ii) sex trafficking of children; or (iii) sex trafficking by force, threats of force, fraud, or coercion.”

The bill would also double down on the SAVE Act by modifying 18 USC 1591 to add *another* new federal crime:

(1) Whoever, being a provider of an interactive computer service, publishes information provided by an information content provider, with reckless disregard that the information provided by the information content provider is in furtherance of an offense under subsection (a) or an attempt to commit such an offense, shall be fined in accordance with this title or imprisoned not more than 20 years, or both.

(2) Nothing in paragraph (1) shall be construed to require the Federal Government in a prosecution, or a plaintiff in a civil action, to prove any intent on the part of the information content provider.

Also, 18 USC 1591 imposes criminal aider-and-abetter liability, and the bill would expand that liability by saying the “term ‘participation in a venture’ includes knowing or reckless conduct by any person or entity and by any means that furthers or in anyway aids or abets the violation of subsection (a)(1).”

Overall, the bill covers similar ground to the draft that I previously blogged about. However, it’s longer and more detailed about its exclusions to Section 230; and all of the proposed changes to 18 USC 1591 are new. The earlier draft apparently circulated through the victim advocates’ community and they piled on with wish-list requests. I don’t believe any changes made the bill more conciliatory to intermediaries; all of the changes hammer the intermediaries harder.

A curiosity: Rep. Wagner submitted a statement about Congress’ constitutional authorization to pass the bill. In addition to the expected Commerce Clause power, she also cites the 13th amendment against slavery and the 14th amendment equal protection clauses. Hmm….

How This Bill Is An Existential Threat to Section 230

The bill purportedly only targets just one type of anti-social activity, but it would effectively eviscerate Section 230 across all types of content. There are several ways this could happen, including:

* the amendments to 18 USC 1591 are problematic. They would make it a crime–punishable up to 20 years–to publish any information (*not just ads*) that supports or promotes sex trafficking operations with “reckless disregard” about the criminality. This reminds me of the lawsuits against Twitter and other social media services for publishing content that plaintiffs have argued “materially supports” terrorist organizations, such as Fields v. Twitter. What steps should a prudent service provider take to ensure they do not have “reckless disregard” for publishing content from sex traffickers? Recall that this is criminal liability with jailtime as the penalty, so intermediaries will take an especially conservative tack. It’s unclear if an intermediary can simply wait for “takedown” notices to avoid having “reckless disregard.” If not, then intermediaries may feel compelled to lock down UGC, such as shutting down all risky content categories, pre-vetting all content before public posting, and authenticating users (so that any known sex traffickers can be blocked). In other words, many intermediaries would choose to end some of the key practices that help UGC communities flourish.

* If the “material support of terrorists” lawsuits succeed, every social media site will become a financial guarantor against all losses suffered by every victim of any terrorist organization that used the social media site. In effect, those lawsuits represent an existential threat to the social media sites because the financial exposure (for all losses suffered by all victims) could dwarf the social media site’s financial prospects. Similarly, this law sets up the possibility that intermediaries that provide any services to sex traffickers will become financial guarantors to all victims of that trafficker. The financial consequences of such liability would create an existential threat to defendants. Perhaps the biggest commercial intermediaries could insure against those risks, but everyone else could not. So what would intermediaries do to mitigate that business-ending risk? Most likely, they would lock down UGC.

* I don’t have a sense of what existing state laws would be newly unleashed on the intermediary community. No matter what laws are already on the books, I am more fearful of new laws that state legislatures would pass given the new breathing room around Section 230. States could pass an infinite variety of crimes or torts that adopt the following structure: “If intermediaries don’t do X, they will be liable for any sex trafficking activity on their site.” Fill in X with the most pernicious obligations that would make UGC impossible, and yet intermediaries still will be feel compelled to do X to avoid the liability. States have already shown an irresistible propensity to consider laws that would destroy the Internet (a few top-of-mind examples: ban keyword advertising; ban “fake news”; ban anonymous online speech; create a statutory “right to be forgotten”). Section 230 has kept many of the worst legislative ideas at bay. This bill would drop those restraints, letting state legislatures declare open season on the Internet.

* As I’ve explained elsewhere, letting state AGs regulate the Internet intermediary community would be bad news for numerous reasons. One example: a state AG is elected only by his/her states’ voters but this law would give them increased powers to force Internet intermediaries to make changes across their national or even global service that will affect residents who never could vote for–or against–that AG.

All things considered, the stakes for this bill are really high. Most of our day is spent using Internet services that depend on Section 230. Take a look at Alexa’s top 14 sites: Google, YouTube, Facebook, Reddit, Amazon, Wikipedia, Yahoo, Twitter, eBay, Netflix, Imgur, LinkedIn, Instagram, Craigslist. With the possible exception of Netflix, every service depends critically on UGC–and, by extension, on Section 230. What will these sites do in response to this bill? How would the bill chill the companies that hope to displace these incumbents?

How Should Proponents of Section 230’s Immunity Respond?

I did a search on the bill name, and the Internetz are shockingly quiet about this bill. I know DC is currently awash with bad policy ideas, but this bill easily ranks in my list of top 10 worst ideas circulating in DC right now (and we all know how competitive that shitlist is). This bill deserves more attention than it’s gotten so far. Hence, the Drudge Siren is back…

I’m not sure how to fix this bill in the spirit of compromise. In part, that’s because Congress already passed the SAVE Act to add a new federal crime and take advantage of an existing Section 230 exclusion. In a sense, the SAVE Act was a compromise option. My perspective: no more compromises about undermining Section 230. As a result, I feel this bill needs to fail entirely, and I’m planning to actively oppose this bill. Please contact me if you’re like-minded and ready to take action. I’m also investigating if the public interest groups or major Internet companies are planning to take action.